Navtej Singh Johar & Ors. v. Union of India Thr. Secretary Ministry Of Law and Justice

Full name: Navtej Singh Johar & Ors. v. Union of India, Thr. Secretary Ministry Of Law and Justice

Citation: (2018) 10 SCC 1; AIR 2018 SC 4321

Court: Supreme Court of India

Date of decision: September 6, 2018

Bench Composition: A 5-judge Constitution bench

Key Aspects:

• Petitioners: Navtej Singh Johar, Ritu Dalmia, Ayesha Kapur, Aman Nath
• Outcome: In the case, the Supreme Court partially struck down the 377^th Section of the IPC, stating that the provision is unconstitutional insofar as it seeks to ban adult, consensual relationships.
• Rights Violated: The judgement also established the infringement of Articles 14 (Equality), 15 (Non-Discrimination), 19 (Freedom of Expression), and 21(Article Guaranteeing Life and Personal Liberty) of the Indian Constitution.
• Legal Impact: This judgment overruled the judgment of Suresh Kumar Koushal v. Naz Foundation, passed in 2013. The judgment was heavily influenced by K.S. Puttaswamy v. Union of India (Right to Privacy)

INTRODUCTION

Navtej Singh Johar v. Union of India is a landmark case in Indian Jurisprudence, and one that has finally decriminalized consensual homosexual relations, thus becoming a great milestone in the field of LGBTQ+ rights. Section 377 of the IPC targeted “carnal intercourse against the order of nature”, an archaic law left behind by the colonial powers to make homosexual acts criminal in the country. This judgement set aside earlier verdicts and upheld the Constitution of India on equality, dignity, and privacy.

BACKGROUND OF THE CASE

The contentious Section 377 was inserted in the IPC in 1861 during British rule and criminalized carnal intercourse “against the order of nature”. The enactment targeted more or less homosexual acts. With time, this section turned into a tool for harassment against the LGBTQ+ community, promoting discrimination and playing with the fundamental rights of citizens.

The first major challenge to Section 377, IPC came in the form of Naz Foundation v. Government of NCT of Delhi (2009), whereby the Delhi High Court had decriminalized consensual homosexual acts between adults, however in Suresh Kumar Koushal v. Naz Foundation, the Supreme Court had, in 2013, set aside the order and held that the court was not empowered to legislate and that it was up to Parliament to amend the law. That judgement revived the debate on LGBTQ+ rights and laid the ground for the Navtej Singh Johar case.

FACTS OF THE CASE

Navtej Singh Johar, an established dancer, along with other petitioners, approached the Supreme Court, challenging the constitutional validity of Section 377 IPC. The petitioners claimed that “the provision contravenes the fundamental human rights of LGBTQ+ individuals by criminalizing their identity as well as consensual sexual behaviors”. Furthermore, “the key contention in these cases was that Section 377, IPC”:

• Violated the Right to equality under Article 14,
• Infringed the Right to freedom of expression (Article19),
• Impinged on the Right to life and personal liberty, which includes privacy and dignity guaranteed under Article 21.

They have called for the decriminalization of consensual relations between adults in private spaces and have stated that Section 377 of the IPC has a disproportionate impact on the LGBTQ+ community, thereby subjecting them to harassment by the government and other members of society.

ISSUES RAISED

1. Whether Section 377 violates the fundamental right of expression as provided under Article 19(1)(a) by prohibiting the gender expression of individuals belonging to the LGBTQ+ community?
2. Was the rationale behind the judgment by the Supreme Court in the Suresh Kaushal case solid in its comprehension of morality as social morality?
3. Is Section 377 violating Articles 14 and 15 on the basis of “sexual orientation” and “gender equality” by promoting discrimination against homosexuals?
4. Whether the right to autonomy and dignity as enshrined in Article 21 of the Indian Constitution gets violated, as private consensual acts between same sex persons are penalized?

ARGUMENTS FROM PETITIONER

1. Homosexuality, bisexuality, and other sexual orientations are all equally natural and cannot be considered in any form of illness. Prohibition of Homosexuality destroys the dignity of an individual, creates discomfort regarding the gender of an individual, and violates the rights to the privacy of an individual as specified under Article 21 of the Constitution of India. Similarly, the growth of personality, building relations, forcing association with an individual, and other basic desires stipulated under Art 19(1)(a) of the constitution of India will also be affected.
2. LGBT Community is comprised of only 7-8% of the total Indian Population, and due to sexual orientation, they face discrimination and abuse. Therefore, they need protection to reach their maximum potential and live freely without any fear, apprehension, or trepidation.
3. The Transgender section has been identified as a third gender and have been granted certain by NALSA, but the consensual activity is considered a crime.
4. The petitioners are seeking a direction to the government for the scrapping off section 377 IPC to the extent it criminalizes the act of sexual intercourse between homosexuals. They are of the opinion that section 377 IPC should be restricted to the acts of bestiality.
5. The Petitioner pleaded that the violation of Sec 377 includes the infringement of many fundamental rights such as the right to dignity, equality, privacy, liberty, freedom of expression, etc.
6. As there is no intelligible differentia or classification between natural and unnatural sex, which is evident from the above section, it violates Article 14 of the constitution. There has been no such definition for the stated terms in the section or statute, which shows their vagueness.
7. The section also violative of Art 15 of the constitution as Art 15 also includes sexual orientation, and sec 377 is biased according to the sex of the partner.

ARGUMENTS FROM RESPONDENT

1. The respondent on behalf of Intervener said that sec 377 constitutes abusing the organs and such acts are undignified and derogatory and amount to constitutional wrong and constitutional immorality.
2. This court in NALSA gives sufficient rights to the community and further reliefs asked by petitioners are mere abuse to privacy and personal liberty, transgressing the concept of public morality.
3. The criminalization of acts under Sec 377 is more relevant now, as homosexuals indulging in those acts are more prone to contacting HIV than heterosexuals, and henceforth the right to privacy should not be extended for the same.
4. Besides the fact that declaring Sec 377 unconstitutional would totally dent the family system, institution of marriage, and social culture, it will destroy the political, economic, and cultural heritage of the country.
5. Sec 377 does not violate the constitutional rights of a person as it is the duty of state to put reasonable restrictions on certain acts like carnal intercourse to protect the citizens from something offensive and injuries.
6. It does not infringe upon Art 14 because the state has the competence to determine who should fall within a class in order to make laws based on reasonable classification. Further, Sec defines only an offence and its punishment.
7. It does not violate Art 15 in as much as the article mainly prohibits discrimination on the basis of sex and not sexual orientation, which is nowhere described.
8. It will also affect Parsi Marriage and Divorce Act, Special Marriage Act, Indian Divorce Act and Hindu Marriage Act.

JUDGEMENT

1. The court opined that whether the section is minuscule in number or not, they also have a right to privacy, which encompasses “individual autonomy” and “sexual orientation”.
2. Their choice of partners may be different too, but that in no way suggests that they should be punished for such a choice. Section 377 is an infringement of their human dignity and their choice as well, hence an infringement of their right to privacy under Article 21.
3. The major purpose for continuing Sec 377 in the IPC is safeguarding women and children from any sort of abuse and harassment caused due to non-consensual carnal intercourse carried out by the LGBT community does not harm women or children in any way.
4. Besides, it should also be noted that such acts without consent have already been defined as an offense under section 375 of the IPC; therefore, section 377 is redundant and discriminatory and targets only a particular section of society and is violative of Article 14 of the Constitution of India and is unconstitutional in nature.
5. Our constitution is liberal, and we cannot be absolute in granting the right of choice. Thus, some restrictions exist on this right as well.
6. However, the right to choose a partner for sexual relationships is totally based on personal choices, which cannot be restricted.
7. Similarly, whereas Section 377 of the IPC restricts the right of this community to choose a partner for sexual activities, such a restriction is irrational and arbitrary.
8. Public order, decency and morality are the grounds which can impose reasonable restrictions on the fundamental right of expression under Article 19(1)(a). Any act done in affection by any member of this community in public does not in any way disturb the public order or moral values till it is decent enough and is not obscene for the society at large.
9. Section 377 is, however, unconstitutional because it does not conform to the test of proportionality and contravenes the fundamental right of expression of the LGBTQIA+ community.
10. The Supreme Court was of the view that Sec 377 to a certain extent is unconstitutional as this section violates article 14,15,19 and 21 of the Indian Constitution. So it overruled the judgement given in Suresh Koshal and ors. v. naz Foundation and ors.
11. It also declared that Section 377 would punish only non-consensual sexual acts committed against any adult, sexual acts against any minor and even bestiality.

IMPACT OF THE JUDGEMENT

The Navtej Singh Johar judgement is hailed as one that showcased the progressive interpretation of constitutional rights. In affirming the dignity of LGBTQ+ individuals, it aligned Indian law with worldwide, emergent trends in decriminalizing homosexuality. This again raised a spate of activism and legal challenges regarding the rights of LGBTQ+ people in India, giving rise to a movement toward greater inclusion and equal treatment.

CONCLUSION

Navtej Singh Johar v. Union of India, a landmark judgement, marks a historic milestone in the struggle for the rights of LGBTQ+ individuals in India. By substantially amending Section 377, IPC, the Supreme Court reinforced the renewed commitment to the pillars of equality, privacy, and liberty, as all citizens, regardless of their sexual orientation, are entitled to live with dignity and liberty. This judgement heralds a giant leap in India’s evolution as a tolerant society.